Subbarama Naidu & Anr. (2004) 8 SCC 774 while considering a similar
issue in which after dismissal of the complaint by trial court on the
ground that service of notice under Section 138 of the Act was
mandatory and mere sending of notice was not sufficient, upheld the
order passed by the High Court that non-service of notice was not a
ground for rejecting the complaint and that the effect thereof was to be
considered during trial, and dismissed the appeal filed before Hon'ble
Supreme Court holding that the burden was on the complainant to
show that the accused had managed to get an incorrect endorsement
made but the effect of it has to be considered during trial.
7. In the instant case, the court took cognizance of the offence
considering prima facie material on record, hence, at the very threshold,
the entire complaint case cannot be thrown out on the mere
endorsement of the postal peon “always door locked” and the same in
view of the mandates given by the Hon‟ble Supreme court in the above
case that the effect of the endorsement shall be considered during trial,
I am not inclined to interfere in the order impugned taking cognizance
as well as in the entire criminal proceeding.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No.3418 of 2013
Mrs. Rita Kumari,
V
The State of Jharkhand
CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA
Dated:- 17.05.2016
Citation: 2016 ALLMR(CRI)JOURNAL 471
Invoking the inherent power of this Court under Section 482
of the Code of Criminal Procedure (in short „the Code‟), the petitioner
has prayed for quashing of the entire criminal proceeding of Complaint
Case No.C/1-123 of 2012 including the order dated 18.02.2012 passed
by learned Judicial Magistrate, 1st Class, Jamshedpur taking cognizance
of offence under Section 138 of the Negotiable Instrument Act (in short
„the Act‟).
2. The facts of the case, which is relevant for the purposes of
determination of the issue involved in this petition, in short, is that on
the basis of a complaint filed by the complainant-Sanjay Kumar, the
aforesaid case was instituted with the allegation that the complainant
had booked Flat No.310 in Durga Sui Estate, Kalimati, Jamshedpur for a
total consideration amount of Rs.17,02,000/- and the complainant out of
the said total consideration amount paid a sum of Rs.6,60,000/- to the
accused-petitioner who was one of the partner of Kailash Construction,
the builder who was engaged in the business of Promoters, Developers
and General Order Suppliers, but later on when the complainant came
to know that there is some dispute with regard to title and possession of
the land in question with TISCO and that the work of the construction
of the building has been stopped by the order of the Hon‟ble High
Court, he requested the accused to cancel the booking of the flat and to
return the money advanced to him. The accused, thereafter, handed
over an account payee cheque of the advance money with an assurance
that the cheque will be encashed on its presentation but when the
cheque was presented in the concerned bank, it was returned unpaid
showing “insufficient fund” in the account which was communicated to
the complainant by the banker with cheque return memo dated
29.11.2011. Thereafter, the complainant send a legal notice to the
accused through his lawyer on 19.12.2011 under registered post with
A/D but the same was returned with an endorsement of the postal
peon “always door locked” and in spite of getting knowledge the
accused did not pay the amount to the complainant.
3. It appears from the order impugned dated 18.02.2012 that
after examination of the complainant on solemn affirmation and on
perusal of the relevant documents, the court finds a prima facie case
under Section 138 of the Act against the accused and directed to issue
summon to the accused. Hence, this revision.
4. Learned counsel, Mr. Manish Kumar appearing for the
petitioner assailing the order impugned by which cognizance of offence
has been taken against the petitioner, as bad in law and perverse
seriously contended that the basic requirement for initiation of a
proceeding under Section 138 of the Act is “service of notice” and if the
complainant himself does not show that notice has been served, the
entire complaint case requires to be thrown out at the threshold. In
support of his contention, the learned counsel strictly relied on the
judgment of the Hon‟ble Supreme Court in the case Shatki Travel and
Tours Vs. State of Bihar & Anr.; (2002) 9 SCC 415 and contended that
when the complainant has nowhere disclosed in the complaint petition
that demand notice has been served, the complaint is not maintainable.
As such the order taking cognizance and the entire criminal proceeding
is bad in law and fit to be quashed.
5. Contrary to the aforesaid submissions, the learned counsel
for the complainant-opposite party no.2 submitted that there is a clear
averment in the complaint petition that the notice was sent to the
accused on correct address but the same was returned un-served with
an endorsement “always door locked” by the postal peon and this
clearly indicates that the accused managed to get the said endorsement
and merely because the notice has not been duly served, the order
taking cognizance cannot be quashed and the effect of the said
endorsement shall be considered during trial.
6. Before I enter into the veils of submissions of learned
counsels, a reference of Section 138 of the Act is necessary for the
proper adjudication of the issue involved in this case. The conditions
pertaining to the notice to be given to the drawer have been formulated
and incorporated in clauses (b) to (c) of the proviso to Section 138 of the
Act. The aforesaid two proviso of Section 138 of the N.I. Act are
extracted hereinbelow:-
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for the
payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque,
within fifteen days of the receipt of information by
him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or as the case may be, to the holder in due course of
the cheque within fifteen days of the receipt of the
said notice.
On mere reading of the aforesaid two provisions, it is clear
that on the part of the payee, he has to make a demand by “giving a
notice” in writing and after receiving the notice if the accused or the
drawer failed to pay the cheque amount within 15 days from the date of
such „giving a notice‟ cause of action arises to initiate a proceeding. The
Hon‟ble Supreme Court in the case V. Raja Kumari Versus P.
Subbarama Naidu & Anr. (2004) 8 SCC 774 while considering a similar
issue in which after dismissal of the complaint by trial court on the
ground that service of notice under Section 138 of the Act was
mandatory and mere sending of notice was not sufficient, upheld the
order passed by the High Court that non-service of notice was not a
ground for rejecting the complaint and that the effect thereof was to be
considered during trial, and dismissed the appeal filed before Hon'ble
Supreme Court holding that the burden was on the complainant to
show that the accused had managed to get an incorrect endorsement
made but the effect of it has to be considered during trial.
7. In the instant case, the court took cognizance of the offence
considering prima facie material on record, hence, at the very threshold,
the entire complaint case cannot be thrown out on the mere
endorsement of the postal peon “always door locked” and the same in
view of the mandates given by the Hon‟ble Supreme court in the above
case that the effect of the endorsement shall be considered during trial,
I am not inclined to interfere in the order impugned taking cognizance
as well as in the entire criminal proceeding. The solitary point raised by
the learned counsel for the petitioner is, accordingly, answered. The
criminal proceeding of the court below and the order taking cognizance
in view of the above discussion, does not require any interference at the
very threshold.
8. This criminal miscellaneous petition is, thus, dismissed.
(R.N. Verma, J.)
Jharkhand High Court, Ranchi
Dated, 17th May, 2016
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